Citation Nr: 1033383
Decision Date: 09/03/10 Archive Date: 09/13/10
DOCKET NO. 05-09 114 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New
York
THE ISSUES
1. Entitlement to service connection for joint pain.
2. Entitlement to service connection for hypertension.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
W. Yates, Counsel
INTRODUCTION
The Veteran served on active duty from November 1990 to May 1991.
This matter is before the Board of Veterans' Appeals (Board) on
appeal from a January 2004 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.
For the reasons indicated below, the appeal is again remanded to
the RO via the Appeals Management Center in Washington, DC.
REMAND
The Veteran is seeking service connection for joint pain and
hypertension. The Veteran attributes both of these conditions to
his service in the country of Kuwait during Operation Desert
Storm.
A. Additional Development of Military Service Record
Review of the record shows that the Veteran's complete service
treatment and service personnel records are not associated with
the claims file. Pursuant to the Board's March 2009 remand, the
RO sent a May 2009 letter to the Veteran requesting that he
provide an outline detailing his entire military service
(including branches of service, periods of active duty, active
duty for training, and inactive duty for training). No response
to this request was received.
While the RO requested the Veteran's service treatment and
service personnel records from the National Personnel Record
Center in June 2009, the Board finds that a request to locate
these records should also be made by the RO to the Navy Personnel
Command (PERS-312E) and the Department of Veterans Affairs
Records Management Center. The evidence of record indicating
that the Veteran served in the Navy Reserves as recently as 2002.
B. Additional Treatment Records Available
A June 1992 treatment letter indicated that the Veteran was being
treated for a fractured finger by private physician, J.F., M.D.
The RO, with the assistance of the Veteran, should attempt to
obtain these treatment records.
C. Stegall Concerns
Pursuant to the Board's March 2009 remand, the RO was to schedule
the Veteran for the appropriate VA examination to determine the
existence and etiology of any hypertension and joint pain found.
Although a VA examination was held in October 2009, the VA
examiner failed to provide any meaningful rationale for the
opinions provided therein - which was the basis for the Board's
March 2009 remand. See Barr v. Nicholson, 21 Vet. App. 303, 311
(2007) (if VA provides the Veteran with an examination in a
service connection claim, the examination must be adequate);
McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, the
October 2009 VA examination report concluded with an impression
of avulsion fracture to the third proximal interphalangeal
(joint), with continued pain and limited range of motion;
hypertension; and left rib injury resolved, no symptoms at this
time. The VA examiner then opined that these conditions are "at
least as likely as not continuation of condition treated in the
service."
Currently, the Veteran is shown to have been on active duty from
November 1990 to May 1991. No diagnosis of hypertension is shown
during this time frame, or within the year immediately
thereafter. Moreover, the first record of treatment for the
Veteran's fractured finger is in June 1992. For these reasons,
the Board concludes that the VA examiner that conducted the
October 2009 remand should be asked to provide a complete
rationale for the opinions provided. Stegall v. West, 11 Vet.
App. 268, 271 (1998) (holding that a remand by the Board confers
on the Veteran, as a matter of law, a right to compliance with
the remand instructions, and imposes upon VA a concomitant duty
to ensure compliance with the terms of the remand).
Accordingly, the case is remanded for the following action:
1. The RO must contact the Veteran to
request that he complete a VA Form 21-4142
to obtain his medical treatment records
from J.F., M.D., who treated the Veteran
for a fractured finger in June 1992. The
RO must then obtain copies of these medical
treatment records. All attempts to secure
this evidence must be documented in the
claims file by the RO. If, after making
reasonable efforts to obtain the identified
records, the RO is unable to secure same,
the RO must notify the Veteran and (a)
identify the specific records the RO is
unable to obtain; (b) briefly explain the
efforts that the RO made to obtain those
records; (c) describe any further action to
be taken by the RO with respect to the
claim; and (d) notify the Veteran that that
he is ultimately responsible for providing
the evidence. The Veteran and his
representative must then be given an
opportunity to respond.
2. The RO must contact the Navy Personnel
Command (PERS-312E), the Department of
Veterans Affairs Records Management Center,
as well as any other indicated source, in
an attempt to locate the Veteran's complete
service treatment records and service
personnel records. The claims folder must
document the efforts made to obtain these
records along with any negative responses.
If additional service treatment records
cannot be obtained, a letter must be sent
to the Veteran informing him of the steps
taken to obtain the records, listing
alternative sources, and requesting him to
furnish any such records in his possession
or to identify the possible location of
such records. The RO must notify the
Veteran that it is his responsibility to
cooperate in the development of the claim.
Failure to cooperate in the development of
the claim without good cause may include
denial of the claim. 38 C.F.R. §§ 3.158,
3.655 (2009).
3. Thereafter, the RO must obtain a
supplemental VA medical opinion addressing
the issues of whether the Veteran's current
hypertension and joint pain (diagnosed as
avulsion fracture to the third proximal
interphalangeal joint and left rib injury,
resolved) is related to the Veteran's
period of military service, including his
service in the Kuwait during the Persian
Gulf War. If possible, this opinion must
be provided by the VA physician who
considered this matter in October 2009.
The claims file must be made available to
and reviewed by the VA physician in
conjunction with the requested opinion. A
complete rationale for all opinions
given must be provided. If the physician
cannot provide the requested opinions
without resorting to speculation, it must
be so stated, and the physician must
provide the reasons why an opinion would
require speculation. The report prepared
must be typed.
4. The examination report must be reviewed
to ensure that it is in complete compliance
with the directives of this remand. If the
report is deficient in any manner, the RO
must implement corrective procedures.
5. After completing the above actions, and
any other development as may be indicated
by any response received as a consequence
of the actions taken in the paragraphs
above, the claims on appeal must be
readjudicated. If either claim remains
denied, a supplemental statement of the
case must be provided to the Veteran and
his representative. After the Veteran and
his representative have had an adequate
opportunity to respond, the appeal must be
returned to the Board for appellate review.
No action is required by the Veteran until he receives further
notice; however, he may present additional evidence or argument
while the case is in remand status at the RO. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
_________________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the United States Court of Appeals for
Veterans Claims. This remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the
merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).